Filed 3/30/21 Carrillo v. Alvarez CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KARLA CARRILLO, a Minor, etc., et al.,
F077422
Plaintiffs and Appellants,
(Super. Ct. No. S-1500-CV-278424)
v.
CARLOS ALVAREZ et al., OPINION
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Kern County. David R.
Lampe, Judge.
Saldo Law Group and Tyler B. Saldo; Chain Cohn Stiles and David K. Cohn;
Ernst Law Group, Don A. Ernst and M. Taylor Ernst; Esner, Chang & Boyer and Andrew
N. Chang for Plaintiffs and Appellants.
Cole Pedroza, Curtis A. Cole, Alysia B. Carroll, and Cassidy C. Davenport;
Lebeau Thelen and Dennis R. Thelen for Defendants and Respondents.
Tucker Ellis and Traci L. Shafroth for California Medical Association, California
Dental Association, California Hospital Association, California Academy of PAs, and the
American Medical Association as Amici Curiae on behalf of Defendants and
Respondents.
-ooOoo-
Plaintiffs Karla and Norma Carrillo1 appeal from the Kern County Superior
Court’s February 21, 2018 judgment entered in favor of defendants Dr. Carlos Alvarez,
Valley Medical Group, and Carlos Flores. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Plaintiffs’ visit to Valley Medical Group
On October 12, 2011, Norma brought Karla—then 17 years old—to Valley
Medical Group, a clinic owned by Alvarez. Karla had been suffering intermittent
headaches and a “hot” forehead for the past two or three days and had been treating her
condition with ibuprofen. In the examination room, Norma and Karla met Alfred Tobias,
a Touro University (Touro) student enrolled in the school’s physician assistant program.
He introduced himself as a “physician assistant student” and advised he was “on a
clinical rotation”; would “do a history” and “physical exam” “with their permission”; and
would present the information to his “preceptor or supervising clinician,” who would
then “do an independent exam” and “make the plan for the patient.” When Tobias asked
“if [he had] their permission” to proceed, both Norma and Karla responded in the
affirmative.
As reflected in a chart note prepared by Tobias, Karla stated she experienced
“throbbing” “lateral-frontal” headaches “15 times a day.” Each episode would last “15 to
30 seconds.” Karla denied having any weakness; paresthesia; fever; chills; weight loss;
earache; changes in vision or hearing; nasal drainage; sore throat; cough; shortness of
breath; neck, chest, or back pain; nausea; or vomiting. Tobias noted Karla was
previously diagnosed with type 2 diabetes. He did not perceive any acute distress.
Palpation of the head and neck did not elicit tenderness and Karla’s neck exhibited full
1 In this opinion, where appropriate, we refer to a particular plaintiff by first name to
avoid confusion. No disrespect is intended.
2.
range of motion. Her lungs were “[c]lear to auscultation bilaterally.” Tobias observed a
“[f]ast heartbeart” and possibly a “diastolic murmur.” He did not make a diagnosis.
After Tobias left the examination room, he discussed his findings with Flores.
Everything Tobias did at Valley Medical Group was under the direction of both
Dr. Alvarez and Flores, a licensed physician assistant employed by Valley Medical
Group. Tobias and Flores went over life-threatening illnesses that needed to be ruled out,
including stroke, brain tumor, aneurysm, brain hemorrhage, and meningitis.
Thereafter, Flores evaluated Karla. She denied having any nausea, vomiting, or
vision problems. Flores observed no distress. Karla’s ears, eyes, nose, throat, and neck
were normal. Nothing suggested an abnormality with her brain or nervous system.
Flores checked Karla’s heart and determined she had a benign venous murmur rather than
a diastolic murmur. He concluded there was no risk of a life-threatening illness and
diagnosed stress-induced tension headaches. The chart note was subsequently revised:
“diastolic murmur” was changed to “venous murmur” and “tension headache [secondary]
to stress” was added. Karla was instructed to take acetaminophen as needed but return to
Valley Medical Group “in one week if [her] headaches become constant and/or worsen[]”
and/or she “develops nausea, vomiting, photophobia, body aches, neck pain.”
II. Bakersfield Memorial Hospital
For a two-week period following her visit to Valley Medical Group, Karla
occasionally complained of headaches but felt better after ingesting acetaminophen.
According to Norma, Karla otherwise appeared fine and went about her normal routine.
She was able to walk, converse, eat, sleep, dress, attend school and church, and do
homework without any apparent difficulty. As a result, Norma did not take Karla back to
Valley Medical Group.
On October 27, 2011, Karla complained of light sensitivity for the first time. On
October 29, 2011, she had a fever and her head “hurt more.” Karla also experienced pain
at the base of her head for the first time. On October 30, 2011, she had a fever again.
3.
Then, while at church, Karla told Norma she “wasn’t feeling well” and “was starting to
see double.” Karla was taken to Bakersfield Memorial Hospital, where she was seen by
Dr. Peter Ellis, an emergency physician.
Karla told Ellis she “was having severe headaches” for two or three weeks that
were “increasing in severity and frequency,” becoming “almost constant” “for the last
couple of days.” She also complained of fevers, neck stiffness, vision problems, and
bouts of confusion. Ellis conducted physical and neurological exams, both of which were
normal. The results of a computerized tomography scan of the head were also normal.
Ellis ordered a lumbar puncture. Before the procedure could be performed, Karla’s
pupils dilated and she “started thrashing her extremities . . . .” She then “settled into an
episode where she was unresponsive, staring into space . . . .” Ellis administered Ativan,
a medication used to treat seizures. While Karla “initially seemed to respond,” she “went
into the next altered state, which she never really recovered from.” At trial, Ellis
testified:
“[Karla] became more agitated, more pupillary dilatation. At that time her
eyes were doing what we call nystagmus, moving back and forth
unpredictably. She was completely unresponsive to my questions, to her
family, and also became very hyper-reflexive. Her reflexes were very
twitchy. Just the generalized state of hyper-excitation of her nervous
system that was difficult to explain.”
Testing of the cerebrospinal fluid collected from the lumbar puncture indicated
“an inflammatory process in the central nervous system, likely to be some type of
meningitis.” A magnetic resonance imaging scan showed two areas of infarction in the
brain. Additional imaging taken on October 30, October 31, and November 11, 2011,
demonstrated Karla sustained additional strokes. Ellis concluded the infarctions were the
result of cocci meningitis. Karla has since been “functionally quadriparetic” with “some
slight motion of her right hand and her right foot.”
4.
III. The lawsuit
Plaintiffs sued Alvarez, Valley Medical Group, and Flores for both medical
negligence and general negligence.2 Plaintiffs alleged Flores negligently failed to
diagnose and treat Karla’s cocci meningitis and Alvarez and Valley Medical Group were
vicariously liable. Plaintiffs also alleged Alvarez and Valley Medical Group were
directly liable for their failure to supervise Tobias.
IV. Defendants’ demurrers
Defendants filed demurrers to the operative complaint. They argued plaintiffs’
cause of action for general negligence was superfluous. The superior court agreed but
overruled the demurrers. It pronounced:
“The defendants are correct that the [general negligence] cause of action
pleaded in the [operative] [c]omplaint is surplusage. This cause of action is
redundant. However, redundant matter is not reachable by demurrer, but
instead by a motion to strike. . . .
“The plaintiffs are incorrect that there are two causes of action stated. The
plaintiffs erroneously premised their argument on a perceived conceptual
distinction between ordinary and professional negligence. . . . There is but
one cause of action for negligence stated in this complaint based upon the
allegation that Karla . . . was misdiagnosed. . . . [A]s to each of the
defendants, the court will determine the scope of duty based upon the facts
proven, and the court will likewise determine the basis by which ordinary
prudence will be calculated and any defendant’s conduct evaluated. . . . In
essence, in terms of the overall case itself, the plaintiffs have gained
nothing by the court’s order overruling the demurrers, nor have defendants
lost anything.”
2 Plaintiffs also sued Tobias and Touro. Those parties reached a settlement prior to
the presentation of evidence.
5.
V. The Trial
a. Evidentiary rulings.
i. Testimony regarding clinical preceptorship agreement
Touro and Valley Medical Group entered into a clinical preceptorship agreement
on October 1, 2007. The contract recitals read in pertinent part:
“A. . . . . [Touro] desires that its students (osteopathic medical students
and physician assistant/master of public health students) obtain practical
clinical experience . . . through participation in a clinical preceptorship
program . . . .
“B. [Valley Medical Group] desires and deems it beneficial . . . to
participate in the [clinical preceptorship] [p]rogram by providing practical
clinical experience . . . for [Touro] students pursuant to the terms and
conditions of this [a]greement.”
Paragraphs 3.01 and 5.01 of the agreement specified Valley Medical Group “shall accept
from [Touro] the mutually agreed upon number of students enrolled in the [p]rogram and
shall provide said students with supervised clinical experience” and “students
participating in the [p]rogram are in attendance for educational purposes,” respectively.
An attached “Clinical Experience Rules and Regulations” (boldface & some
capitalization omitted) listed the several rules, including:
“1. Students shall be supervised by a licensed physician (D.O. or M.D.).
[¶] . . . [¶]
“4. Students are to perform history and physical examination on patients
as well as develop and discuss[] appropriate diagnostic studies to be
ordered with the supervising physician. Students should work with
their supervisi[ng] physician in arriving at a final diagnosis and
development and implementation of the treatment plan. [¶] . . . [¶]
“6. . . . The histories prepared by and the physical examinations
performed by the students must be reviewed by the supervising
physicians and be reviewed periodically by the preceptor and
student. . . . [¶] . . . [¶]
6.
“8. Students shall not order any examinations, tests, medications or
procedures for any patients. Students shall not write prescriptions
for medicine, devices or anything requiring the authority of a
licensed physician.”
In a motion in limine, defendants asked the superior court to preclude both sides
“from attempting to elicit any testimony at the time of trial concerning the contractual
agreement between Touro . . . and Valley Medical Group . . . .” They emphasized, inter
alia, neither Karla nor Norma was “a signatory to the contract,” “assigned the contract,”
or “a third[-]party beneficiary of the contract.” In their opposition, plaintiffs cited
Biakanja v. Irving (1958) 49 Cal.2d 647 (Biakanja) for the proposition defendants could
still “be held liable to a third person not in privity.” The court “ordered that . . . evidence
be received . . . in an Evidence Code section 402 hearing.[3]”
At a section 402 hearing, Tracey Del Nero, Touro’s clinical coordinator, testified
the purpose of the agreement was “to provide educational clinical exposure for students
enrolled within the [physician assistant] program . . . .” She detailed:
“Clinical education is the cornerstone of being able to take didactic
information and to be able to apply it. It’s their practice time to work
through the steps necessary to make clinical reasoning decisions in . . .
various settings, from inpatient/outpatient, to gain the skills and ability to
apply the didactic knowledge that they learned in the didactic year. It is
basically like a mock practice period where they run through the skills,
practice their skills, verify with the . . . licensed clinician that their clinical
reasoning is appropriate or rectify deficiencies so they can learn. [¶] . . . [¶]
“. . . . In order for students . . . or any . . . person to apply to sit for
the national boards and ultimately obtain state license, they must graduate
from an . . . accredited [physician assistant] program, and . . . clinical
rotations are a specific . . . curriculum requirement by those standards.”
When asked whether the agreement “intended for a Touro . . . student to provide actual
hands-on medical care to patients of Valley Medical Group,” Del Nero answered:
3 Henceforth, for brevity, we refer to such hearings as section 402 hearings.
7.
“Absolutely not. As students they’re legally not allowed to. They’re
there for educational purposes only, to practice the skills that they have
been trained in the didactic year in a clinical setting and to continue their
education in the application of specific medical knowledge to a specific
patient situation.”
When asked about “[her] understanding of who is allowed to be a student physician
assistant preceptor in 2011,” Del Nero answered:
“The primary preceptor was a physician, either an M.D. or D.O., but
that physician is able to delegate services to any colleagues under his
supervision or within his same practice. So it can be a resident. It can be
an intern. It can be a [physician assistant], a[] [nurse practitioner], or any
other licensed clinical provider.”
Alvarez concurred the intent of the agreement was to provide physician assistant
students with a clinical training opportunity. When asked whether “the dominant purpose
of the agreement was related in any way, shape, or form to patient safety because of
patient care rendered by a student trainee,” he answered, “Yes.”
Following the section 402 hearing, the court granted defendants’ motion. It
reasoned:
“[T]he court notes that the reason for the Biakanja rule arises when an
injured plaintiff seeks redress in negligence when there is otherwise no duty
except that which may arise from a contract where the plaintiff is a third
party not in privity. . . . [¶] There is no question in this case that there is
privity between [Karla] and Valley Medical [Group] (and Defendant Dr.
Alvarez, as well as Defendant Mr. [Flo]res) by virtue of the patient/medical
provider (physician) relationship. The law need not resort to the issue of
duty arising from any third[-]party contract with respect to these
defendants. The law imposes a duty upon medical professionals to possess
and exercise, in both diagnosis and treatment, the reasonable degree of
knowledge and skill which is ordinarily possessed and exercised by other
members of the profession in similar circumstances. . . . Valley Medical
[Group] (and its professional providers) cannot diminish this legal duty to
the patient by means of any third[-]party contract. No third[-]party contract
can add to this duty. For these reasons, the court finds that the contract
between Touro . . . and Valley Medical [Group] is irrelevant on the
question of the negligence of Valley Medical [Group] and its professional
providers. The Biakanja rule is inapplicable to these defendants. If these
8.
defendants failed in their duty as set forth above, and that failure was a
substantial factor in causing the Plaintiff injury, then they are liable in
negligence.”
ii. Plaintiffs’ experts’ opinions regarding standard of care
Plaintiffs sought to introduce the opinions of Dr. Michael Ritter, Dr. Royce
Johnson, and Dr. Howard Pitchon that the standard of care for medical practitioners
required Alvarez to supervise physician assistant students such as Tobias.
1. Dr. Ritter
At his deposition, Ritter—a board-certified emergency physician—opined Alvarez
and Valley Medical Group violated the standard of care with regard to “[physician
assistant] supervision” “based on the state law as well as [the] agreement that they have
with Touro . . . .” Pertaining to his understanding of the law, he explained:
“I used to be the chair of the interdisciplinary committee, so I did the
oversight for all the credentialing for the [physician assistants] . . . . So I
knew that there was [a] statute out there for [physician assistants] about the
supervision of [physician assistant] students, that it had to be done by a
physician. But I’m not a lawyer, so I don’t know where to look for all that
stuff.
“So when I spoke with [plaintiffs’ counsel], I said, ‘. . . I know these
things are out there. Can you help me find them so we can put it together?’
Because it’s my understanding that as a [physician assistant] student, you
need to be supervised by a physician and not a [physician assistant].”
Ritter added he had experience supervising physician assistants but not physician
assistant students.
The superior court “fully read” Ritter’s deposition testimony and pointed out “a
great deal of [his] opinion” was “based upon his reading of the contract [between Touro
and Valley Medical Group] and his understanding of the law,” which was “not proper
foundation for an expert’s testimony.” In addition, “[t]here was no independent basis for
[Ritter’s] expression of a standard of care opinion on that subject . . . .” The court
9.
advised a section 402 hearing should be conducted to “resolve the foundational
questions” and avoid objections.
During trial, outside the presence of the jury and before Ritter was called to the
stand, the following colloquy transpired:
“THE COURT: . . . I wanted to make doubly sure . . . , just so that
no controversy erupts in the presence of the jury to the prejudice of anyone
or everyone, . . . there’s going to be no opinions of the witness elicited on
the subject matter of the management of Tobias as an intern or student
[physician assistant] with Valley Medical [Group], Dr. Alvarez, or Mr.
Flores. If . . . that is going to be a subject and it’s going to be objected to,
I’d just like to get those cards on the table so I can deal with it.
“[PLAINTIFFS’ COUNSEL]: . . . . There will be no opinions asked
about Tobias or Touro . . . . And if it gets to that point . . . , I will not do it
in front of the jury. I will request [a section 402] hearing, but at this point
in time that is not my intent, and I do not intend to ask any questions with
regard to standard of care of Tobias or Touro . . . .”
After a recess taken in the middle of the defenses’ cross-examination of Ritter,
outside the presence of the jury, plaintiffs’ counsel requested a section 402 hearing “on
the issue of Dr. Ritter concerning . . . his opinions with regard to supervision of . . .
Tobias.” The court rejected the request as untimely.
2. Dr. Royce Johnson
At his deposition, Royce Johnson4—a board-certified internist and infectious
disease specialist—testified he believed the law did not allow a physician assistant to
supervise a physician assistant student and Alvarez should have “directly supervise[d] the
care of the patient . . . himself.” Royce Johnson admitted he “d[id]n’t know th[e] law”
and relied on information given to him by plaintiffs’ counsel. He also stated he “d[id]n’t
have any significant experience with physician assistant students.”
4 As two different physician expert witnesses by the name of Johnson testified in
this case, we use their first and last names to distinguish between them.
10.
The superior court “fully read” Royce Johnson’s deposition testimony and noted
Royce Johnson “rendered an opinion . . . based on the law that he was given by counsel.”
Furthermore, Royce Johnson “has never supervised . . . a physician assistant trainee.”
The court advised a section 402 hearing should be conducted to “resolve the foundational
questions” and avoid objections.
At a section 402 hearing, Royce Johnson testified:
“I think it’s unacceptable for a [physician assistant] to train a
[physician assistant] student in the sense that the training and experience
and nuance of medical care is better known by a[ physician]. They’d be in
a better position to so train a [physician assistant] student.”
Royce Johnson reiterated he never “actually dealt with physician assistant trainees
directly.”
On cross-examination, the following colloquy transpired:
“Q. As I understand it, you would claim significant experience as
a practicing physician with medical students and residents but only limited
experience with licensed [physician assistant]s. That’s your own self-
description of your experience with licensed [physician assistant]s.
“A. I think that’s a fair statement. [¶] . . . [¶]
“Q. . . . [Y]ou described yourself . . . as saying that you were not
holding yourself out as an expert on the law; is that right?
“A. I’m not an expert on the law. [¶] . . . [¶]
“Q. So you told us that you thought that this circumstance, that is,
having a student trainee see a patient without a physician in the room, it
violated the standard of care . . . , but you thought it was more of a legal
than a medical opinion; isn’t that your under-oath testimony?
“A. I think I still think that. . . . [¶] . . . [¶] . . . I think it is more
of a legal than a medical issue, yes. [¶] . . . [¶]
11.
“Q. And other than [plaintiffs’ counsel] holding the [Physician
Assistant Practice Act][5] guidelines in front of you at the deposition I took
from you a year ago, . . . did you even know there was such a set of
statutory law in California called [the Physician Assistant Practice Act]?
“A. . . . I’d never read it, but I was aware there was such a law
....
“Q. . . . You had no independent knowledge of your own, as a
practicing physician of many years, about these statutory provisions?
“A. I was aware there was a statute, but I had never read it.
[¶] . . . [¶]
“Q. . . . [Y]ou would not self-describe yourself to the [c]ourt as an
expert or an authority on physician assistant practice?
“A. Okay. I’ll agree with that.”
Following the section 402 hearing, the court sustained defendants’ objection:
“This issue was whether or not . . . Dr. [Royce] Johnson had
foundation for an expert opinion regarding essentially the method of
supervision or administration of Mr. Tobias acting as a student trainee, and
I find that there is insufficient foundation for that opinion. He may hold an
opinion, but it is not the type of opinion that carries with it the foundation
to express that opinion to the jury . . . .
“Dr. [Royce] Johnson is imminently qualified as a physician. By his
own admission, he’s not an expert in the law. He’s not an expert in
contract. He has not had any substantial experience administering a
physician assistant program, administering or supervising the way in which
physician assistant trainees are taught . . . .”
3. Dr. Pitchon
During his deposition, Pitchon—a board-certified internist and infectious disease
specialist—testified he never supervised physician assistants or worked with another
physician who supervised physician assistants. He was also unfamiliar with any laws
5 See Business and Professions Code section 3500 et seq.
12.
relating to the duties and responsibilities of such supervision. Nonetheless, Pitchon
opined Alvarez breached the standard of care because he did not treat Karla himself:
“[W]e’ve got . . . a [physician assistant] trainee, with very little knowledge
of clinical medicine. We have a [physician assistant] that . . . has some
knowledge of medicine but certainly not complex, and . . . I take the
position it’s your responsibility to . . . see patients. I don’t think the
[physician assistant] is a substitute for a physician, who’s got clinical
knowledge and education beyond the [physician assistant] level.”
Pitchon stated he “ha[d] no idea what the laws are and the contracts and all this other
stuff.”
During trial, outside the presence of the jury defendants objected to Pitchon’s
opinion, asserting lack of foundation. The superior court sustained defendants’ objection
in view of Pitchon’s concession he had “no knowledge of the requirements for a
physician supervising a physician assistant.”
b. Trial testimony.
i. Plaintiffs’ experts
Ritter opined the medical treatment received by Karla on October 12, 2011, fell
below the standard of care. He identified several “red flags” in the chart note: the onset
of new headaches, which was a possible early symptom of meningitis; Karla’s elevated
heart rate; and her type 2 diabetes. In addition, Ritter deemed the chart note deficient
because, among other things, there was no family history recorded; there was no
indication when Karla last ingested ibuprofen, which could have “mask[ed] a fever”; and
there was no “pain scale from zero to ten” describing the severity of the headaches.
Based on the findings, Ritter believed Karla should have been referred to the emergency
room immediately for further testing, which would have revealed cocci meningitis.
Likewise, Royce Johnson opined Karla’s treatment fell below the standard of care.
He believed the presentation of headaches “was a red flag” “for a multiplicity of
diseases”—including meningitis—that “deserved much more considered attention and
13.
evaluation on an expeditious basis.” Johnson thought the findings warranted an MRI
scan and a lumbar puncture.
ii. Defendants’ experts
1. Dr. Richard Johnson
Richard Johnson, a board-certified family practitioner, testified he examines a
physician assistant’s work “under the standard of what a board[-]certified or a licensed
physician would provide at that time.” He reviewed the chart note prepared by Tobias,
found it “very comprehensive and thorough . . . for a headache complaint,” and “couldn’t
see anything . . . where [he] could glean any sort of breach of the standard of care.”
Richard Johnson clarified:
“[The chart note]’s very thorough. It involves the issues that one is
primarily focusing on, the headache, as well as many others. You wouldn’t
have to look at all these organs when you’re just looking at a specific
headache as a problem, which they did, which is thorough. But the major
issues are the neurologic exam, which is normal. So there’s no focal
neurologic findings.
“The person’s vital signs are certainly appropriate for a person this
age with a headache. There’s no evidence of infection. The patient’s neck
doesn’t show any signs of meningitis. The patient’s . . . not in any acute
distress, which is actually a critical issue for headaches. If you have a
headache patient who is in acute distress, that means something is different
than someone who has a headache of a historical nature. So, yes, I mean,
all of the issues that one tends to focus on are certainly covered in this
examination.”
Regarding the chart note’s revision, i.e., “diastolic murmur” was changed to “venous
murmur,” Richard Johnson remarked:
“That told me that Mr. Flores was pretty thorough in reviewing the
student’s history as well as reviewing the student’s physical examination,
because he obviously had to listen to the heart again to come to make that
determination that this is not a diastolic murmur; this is a venous murmur.”
Richard Johnson also opined the discharge instructions met the standard of care.
14.
2. Dr. Michael Forman
Forman—a board-certified emergency physician—testified Karla’s evaluation
satisfied the standard of care. He stated:
“I don’t see anything in her presentation . . . that would suggest to a
reasonable practitioner that they should test her, be it imaging studies,
certainly not a spinal tap, any of that. I don’t see anything there that moves
me at all in that direction. I would feel very, very comfortable sending her
out with symptomatic treatment and instructions to come back again if it
gets worse. Nothing is a hundred percent; so we give those precautions to
patients, just like were given in this case.”
c. Plaintiffs’ proposed jury instruction.
Plaintiffs submitted the following modified CACI No. 418 (Presumption of
Negligence per se):
“[California Code of Regulations, title 16,] section 1399.536[, former
subdivision (a)(1)] states:
“Preceptors participating in the preceptorship of an approved program
shall: [¶] . . . [b]e . . . licensed physician[s] who [are] engaged in the
practice of medicine which practice [is sufficient to] adequately expose[]
preceptees to a full range of experience. The practice need not be restricted
to an office setting but may take place in license[d] facilities, such as
hospitals, clinics, etc.
“If you decide
“1. That . . . Alvarez and/or Valley Medical Group violated this law
and
“2. That the violation was a substantial factor in bringing about the
harm, then you must find that . . . Alvarez and/or Valley Medical
Group was negligent.
“If you find that . . . Alvarez and/or Valley Medical Group did not violate
this law or that the violation was not a substantial factor in bringing about
the harm [or if you find the violation was excused], then you must still
decide whether . . . Alvarez and/or Valley Medical Group was negligent in
light of the other instructions.”
15.
The superior court rejected the proposed instruction. It reasoned:
“Plaintiff[s] argue[] that the . . . instruction should be given because
California Code of Regulations, title 16, section 1399.536, at the time in
question, required that only licensed physicians be preceptors to physician
assistant trainees. Plaintiff[s’] theory is that physician assistant trainee
Tobias was permitted to perform an evaluation of [Karla] by himself at the
time of her presentation on October 1[2], 201[1]. Plaintiff[s’] theory is that
Dr. Alvarez should have been present during the examination, or, at least,
that Dr. Alvarez should have been the person to see the patient with or after
Tobias as a result of this regulation. [¶] . . . [¶]
“The court finds that [Karla]’s injury, that is, vasculitis from cocci
meningitis causing cerebral infarction, . . . is not the kind of occurrence that
th[is] regulation[] . . . w[as] designed to prevent. The court also finds that
[Karla] is not within the class of persons th[is] regulation[] . . . was
intended to protect.
“[California Code of Regulations, title 16, s]ection 1399.536 is not
designed to ensure that patients receive a physician’s evaluation, diagnosis
and treatment plan. That regulation is intended to ensure that physician
assistant trainees receive appropriate training. The court notes the
provision of this regulation which states its intent that a preceptorship be
provided which ‘adequately exposes [sic] preceptees to a full range of
experience’ and that it ‘shall be the responsibility of the approved program
[of instruction] that preceptors comply with the foregoing requirements.’
The regulation does not add to the duty of a physician to ensure that the
physician’s pat[i]ents receive adequate evaluation, diagnosis and treatment
within the standard of care. The duty of the physician to ensure these basic
matters is not the subject matter of the regulation. . . .”
d. Verdict.
As reflected in a special verdict form, the jury concluded Flores had not been
“negligent in the diagnosis or treatment of [Karla].” Accordingly, the jury did not reach
the issue of causation.
DISCUSSION
On appeal, plaintiffs make several contentions. First, “the trial court erred
prejudicially by ruling in limine that as a matter of law, the contract between [Valley
Medical Group and Touro] did not create a separate duty on the part of Dr. Alvarez to
16.
directly supervise Tobias, the [physician assistant] student.” (Some capitalization
omitted.) Second, “the trial court erred in precluding [plaintiffs’] retained expert
witnesses from opining that the standard of care required Dr. Alvarez to supervise
[physician assistant] students such as . . . Tobias.” (Some capitalization omitted.)
Finally, “the trial court erred prejudicially in refusing to instruct the jury that
Alvarez/[Valley Medical Group] could be directly liable for [Karla]’s injuries under a
negligence per se theory based on Alvarez’s violation of a state regulation that requires
licensed physicians to supervise [physician assistant] students like . . . Tobias.” (Some
capitalization omitted.) We reject these contentions.
“Generally, ‘negligence’ is the failure to exercise the care a reasonable person
would exercise under the circumstances. [Citation.] Medical negligence is one type of
negligence, to which general negligence principles apply. [Citations.]” (Massey v.
Mercy Medical Center Redding (2009) 180 Cal.App.4th 690, 694.) “A necessary element
of any cause of action for negligence is . . . the existence of a duty of care which
defendant owed to the plaintiff.” (Rainer v. Grossman (1973) 31 Cal.App.3d 539, 542.)
“In the usual case of medical malpractice the duty of care springs from the physician-
patient relationship . . . .” (Id. at p. 543.) “When a physician-patient relationship exists,
‘the patient has a right to expect the physician will care for and treat him with proper
professional skills and will exercise reasonable and ordinary care and diligence toward
the patient [citation].’ [Citation.]” (Alexander v. Scripps Memorial Hospital La Jolla
(2018) 23 Cal.App.5th 206, 235; see Alef v. Alta Bates Hospital (1992) 5 Cal.App.4th
208, 215 (Alef) [“The standard of care in a medical malpractice case requires that medical
service providers exercise that reasonable degree of skill, knowledge and care ordinarily
possessed and exercised by members of their profession under similar circumstances.”].)
“Under the common law doctrine of respondeat superior, a principal or employer
is vicariously liable for the acts of an agent or employee committed in the course of
employment.” (Lathrop v. HealthCare Partners Medical Group (2004) 114 Cal.App.4th
17.
1412, 1421, fn. omitted; see Bus. & Prof. Code, § 3502, subd. (a)(1) [“[A] [physician
assistant] may perform medical services as authorized by this chapter if . . . . [¶] . . . [t]he
[physician assistant] renders the services under the supervision of a licensed physician
. . . .”]; Bus. & Prof. Code, § 3501, subd. (f)(1) [“ ‘Supervision’ means that a licensed
physician . . . oversees the activities of, and accepts responsibility for, the medical
services rendered by a physician assistant. . . .”].)
Since the jury returned a verdict that Flores, a licensed physician assistant
employed by Valley Medical Group, was not negligent in the diagnosis or treatment of
Karla, neither Alvarez nor Valley Medical Group could be held vicariously liable for
medical malpractice under the doctrine of respondeat superior.
I. Biakanja
The parties did not dispute that Alvarez owed a duty of care to Karla by nature of the
physician-patient relationship. Plaintiff’s argue, however, that the superior court
erroneously concluded “a Biakanja theory of liability [a duty of care based on the
contract] . . . is viable only ‘when there is otherwise no duty’ ” and, in this case, “there
was no need to ‘resort to the issue of duty arising from any third[-]party contract.’ ”
Defendants counter that, “even if the Biakanja factors . . . applied in this case, an
additional duty [did] not arise from the contract” between Valley Medical Group and
Touro because (1) the intent of the contract was to provide educational clinical exposure
for students, not to provide a benefit to patients; (2) the harm to a patient was not
foreseeable as the students were not allowed to provide medical care; (3) it is speculation
to conclude that if Alvarez had personally examined Karla, he would have ordered more
diagnostic testing; and (4) no moral blame can be assigned to Alvarez because, although
Alvarez was the primary preceptor, he appropriately delegated some of his preceptorship
duties to Flores, a licensed clinical provider, and his doing so is not the reason additional
diagnostic tests were not ordered.
18.
“A trial court’s ruling on an in limine motion is generally reviewed for abuse of
discretion. However, review is de novo when the issue is one of law.” (Children’s
Hospital Central California v. Blue Cross of California (2014) 226 Cal.App.4th 1260,
1277.) As noted, a duty of care is an essential element of any negligence claim. (Rainer
v. Grossman, supra, 31 Cal.App.3d at p. 542.) Whether such a duty exists “is a question
of law.” (Ibid.)
“ ‘A duty may arise through statute, contract, or the relationship of the parties.’
[Citations.]” (Lichtman v. Siemens Industry Inc. (2017) 16 Cal.App.5th 914, 920, fn.
omitted.) “A duty running from a defendant to a plaintiff may arise from contract, even
though the plaintiff and the defendant are not in privity.” (Id. at p. 921, fn. omitted.)
“Under these circumstances, the existence of a duty is not the general rule, but may be
found based on public policy considerations.” (Ibid.) “The determination whether in a
specific case the defendant will be held liable to a third person not in privity is a matter of
policy and involves the balancing of various factors, among which are the extent to which
the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the
degree of certainty that the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the moral blame attached to the
defendant’s conduct, and the policy of preventing future harm.” (Biakanja, supra, 49
Cal.2d at p. 650; see Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 779 [“[T]he
question of ‘the closeness of the connection between the defendant’s conduct and the
injury suffered’ [citation] is strongly related to the question of foreseeability itself.”].)6
6 Division Five of the Second Appellate District recognized:
“Biakanja involved economic losses only, but the evolution in legal
reasoning that allowed the Biakanja court to permit a plaintiff with only
economic losses to recover for negligent performance of a contract where
the plaintiff and defendant are not in privity was based on case law that
permitted a personal injury plaintiff not in privity with the defendant to
19.
Assuming, arguendo, Biakanja applies to the instant case, we conclude the totality
of the Biakanja factors weigh against deriving a duty of care to plaintiffs from the
agreement between Touro and Valley Medical Group.
First, as shown by the terms of the contract and the testimonies of Del Nero and
Alvarez, the “ ‘end and aim’ of the transaction” (Biakanja, supra, 49 Cal.2d at p. 650)
was to provide a number of Touro’s physician assistant students with supervised clinical
experience, a prerequisite for state licensure. Because these students were “in attendance
for educational purposes,” they could not render medical care: they were prohibited from
finalizing diagnoses and treatment plans; “order[ing] any examinations, tests,
medications or procedures for any patients”; and “writ[ing] prescriptions for medicine,
devices or anything requiring the authority of a licensed physician.” Any assignments
involving direct communication with patients—e.g., preparing histories, performing
physical examinations—had to be reviewed by a preceptor. Though Alvarez affirmed the
“dominant purpose” of providing clinical training to physician assistant students was
“related” to patient care and safety, this demonstrated—at most—“any potential [impact]
to the plaintiff from the performance of the contract was . . . a collateral consideration of
the transaction . . . .” (Ibid.; see Summit Financial Holdings, Ltd. v. Continental Lawyers
Title Co. (2002) 27 Cal.4th 705, 715.)
In 2011, when this case arose, it would not have been unreasonable for physicians
to entrust actual physician assistants with the education and training of prospective
physician assistants. The pertinent regulation called for “[p]receptors participating in the
preceptorship of an approved program” to “[b]e licensed physicians.” (Cal. Code Regs.,
tit. 16, former § 1399.536, subd. (a)(1), as amended Dec. 21, 2000; see Bus. & Prof.
Code, § 3510.) Yet, the California Legislature also “encourage[d] the utilization of
recover.” (Lichtman v. Siemens Industry Inc., supra, 16 Cal.App.5th at
p. 921, fn. 4.)
20.
physician assistants by physicians” to address “the growing shortage and geographic
maldistribution of health care services” in the state, namely “by enabling [physicians] to
delegate health care tasks to qualified physician assistants where this delegation is
consistent with the patient’s health and welfare and with the laws and regulations relating
to physician assistants.” (Bus. & Prof. Code, former § 3500, as amended by Stats. 1996,
ch. 454, § 1.) The Legislature also sought the “innovative development of programs for
the education, training, and utilization of physician assistants.” (Ibid.)
Moreover, the aforementioned regulation was amended in 2013 to expressly
permit physician assistants to serve as supplemental preceptors. (See Cal. Code Regs.,
tit. 16, § 1399.536, subds. (a)(1), (c).) Along with negating the moral blameworthiness of
delegating preceptorship responsibilities, this revision obviates any need to impose legal
culpability on this activity to advance the policy of preventing future harm. (See Cabral
v. Ralphs Grocery Co., supra, 51 Cal.4th at pp. 781-782 [“The overall policy of
preventing future harm is ordinarily served, in tort law, by imposing the costs of
negligent conduct upon those responsible. The policy question is whether that
consideration is outweighed, for a category of negligent conduct, by laws or mores
indicating approval of the conduct or by the undesirable consequences of allowing
potential liability.”].)
In arguing for a duty of care per Biakanja, plaintiffs argue the foreseeability of a
patient being misdiagnosed if a physician assistant student is not directly supervised by a
physician. Foreseeability of harm, though important, is one of several factors to be
weighed in a Biakanja analysis and is not dispositive. Additionally, a physician assistant
student like Tobias cannot make a diagnosis under the terms of the clinical preceptorship
agreement. Thus, an accusation of misdiagnosis necessarily focuses on whether the
student’s preceptor—a physician or agent thereof—breached the duty of care arising
from the physician-patient relationship. Here, the jury answered that question in the
negative.
21.
II. Plaintiffs’ experts’ opinions regarding the supervision of physician
assistant students
“The standard of care against which the acts of a medical practitioner are to be
measured is a matter peculiarly within the knowledge of experts; it presents the basic
issue in a malpractice action and can only be proved by their testimony, unless the
conduct required by the particular circumstances is within the common knowledge of
laymen.” (Alef, supra, 5 Cal.App.4th at p. 215.) “In order to testify as an expert in a
medical malpractice case, a person must have enough knowledge, learning and skill with
the relevant subject to speak with authority, and he or she must be familiar with the
standard of care to which the defendant was held.” (Avivi v. Centro Medico Urgente
Medical Center (2008) 159 Cal.App.4th 463, 467.) Because the standard of care in a
medical malpractice case “requires that medical service providers exercise that
reasonable degree of skill, knowledge and care ordinarily possessed and exercised by
members of their profession under similar circumstances” (Alef, supra, 5 Cal.App.4th at
p. 215), “[t]he test for determining familiarity with the standard of care is knowledge of
similar conditions” (Avivi, supra, at p. 470). “ ‘[The expert] must have had basic
educational and professional training as a general foundation for his testimony, but it is a
practical knowledge of what is usually and customarily done by physicians under
circumstances similar to those which confronted the defendant charged with malpractice
that is of controlling importance in determining competency of the expert to testify to the
degree of care against which the treatment given is to be measured.’ ” (Huffman v.
Lindquist (1951) 37 Cal.2d 465, 478.)
“[T]he qualification of an expert witness requires exercise of trial court discretion
. . . .” (Avivi v. Centro Medico Urgente Medical Center, supra, 159 Cal.App.4th at
p. 472.) “A ruling that constitutes an abuse of discretion has been described as one that is
‘so irrational or arbitrary that no reasonable person could agree with it.’ [Citation.]”
(Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747,
22.
773.) Ultimately, a reviewing court is “required to uphold [a discretionary] ruling if it is
correct on any basis, regardless of whether such basis was actually invoked.” (In re
Marriage of Burgess (1996) 13 Cal.4th 25, 32, citing Davey v. Southern Pacific Co.
(1897) 116 Cal. 325, 329.)
In the instant case, Royce Johnson disclosed he never “actually dealt with
physician assistant trainees directly.” Pitchon revealed he never supervised physician
assistants, let alone physician assistant students. Even assuming, arguendo, plaintiffs’
counsel’s request for a section 402 hearing with respect to Ritter should have been
granted, the record demonstrates Ritter never supervised physician assistant students.
Since these expert witnesses did not have any experience overseeing physician assistant
students, it cannot be deemed irrational for a court to conclude they were not competent
to testify as to “ ‘what is usually and customarily done by physicians’ ” in that situation
(Huffman v. Lindquist, supra, 37 Cal.2d at p. 478) and preclude opinions on the matter.
III. Plaintiffs’ proposed negligence per se instruction
“The negligence per se doctrine, as codified in Evidence Code section 669, creates
a presumption of negligence if four elements are established: ‘(1) the defendant violated
a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused
death or injury to person or property; (3) the death or injury resulted from an occurrence
of the nature of which the statute, ordinance, or regulation was designed to prevent; and
(4) the person suffering the death or the injury to his person or property was one of the
class of persons for whose protection the statute, ordinance, or regulation was adopted.’
[Citation.] The first two elements are questions of fact, while the latter two are questions
of law. [Citation.]” (Spates v. Dameron Hospital Assn. (2003) 114 Cal.App.4th 208,
218.) “ ‘The burden is on the proponent of a negligence per se instruction to demonstrate
that these elements are met.’ [Citation.]” (Taulbee v. EJ Distribution Corp. (2019) 35
Cal.App.5th 590, 596.)
23.
“In considering whether [plaintiffs’ requested] instruction on negligence per se
should have been given as requested in the circumstances of this case, we first decide as
questions of law under Evidence Code section 669 whether [Karla]’s injuries . . .
‘resulted from an occurrence of the nature [that] the . . . regulation[] [was] designed to
prevent’ and whether [Karla] ‘was one of the class of persons for whose protection the
. . . regulation[] [was] adopted.’ [Citations.]” (Norman v. Life Care Centers of America,
Inc. (2003) 107 Cal.App.4th 1233, 1246-1247.) Here, neither element is satisfied. Prior
to 2013, California Code of Regulations, title 16, section 1399.536, subdivision (a)(1)
read:
“Preceptors participating in the preceptorship of an approved program
shall: [¶] . . . [b]e licensed physicians who are engaged in the practice of
medicine which practice is sufficient to adequately expose preceptees to a
full range of experience. The practice need not be restricted to an office
setting but may take place in licensed facilities, such as hospitals, clinics,
etc.”
Subdivision (b) added:
“It shall be the responsibility of the approved program to assure that
preceptors comply with the foregoing requirements.”
As written, this provision did not concern the prevention of patient injuries resulting from
faulty medical evaluations, diagnoses, or treatments. Rather, it was designed to ensure
physician assistant students participating in a preceptorship program would be
“adequately expose[d] . . . to a full range of experience.”
IV. Amicus curiae brief
The California Medical Association, California Dental Association, California
Hospital Association, California Academy of PAs, and American Medical Association
filed an amicus curiae brief in support of defendants. The brief rehashes some of
defendants’ points but also raises new arguments. “ ‘An amicus curiae ordinarily must
limit its argument to the issues raised by the parties on appeal, and a reviewing court need
not address additional arguments raised by an amicus curiae.’ [Citation.]” (Dignity
24.
Health v. Local Initiative Health Care Authority of Los Angeles County (2020) 44
Cal.App.5th 144, 166.) We therefore decline to address these new arguments.
DISPOSITION
The judgment of the superior court is affirmed. Costs are awarded to defendants
Dr. Carlos Alvarez, Valley Medical Group, and Carlos Flores.
DETJEN, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
MEEHAN, J.
25.